Smith v. State
| Decision Date | 05 February 1929 |
| Docket Number | 3 Div. 626. |
| Citation | 23 Ala.App. 72,121 So. 692 |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Feb. 26, 1929.
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Petition of George W. Smith for habeas corpus. From an order or judgment denying the writ, petitioner appeals. Affirmed.
Certiorari denied by Supreme Court in Smith v. State, 121 So 693.
Hamilton & Caffey, of Brewton, and D. M. Powell, of Greenville, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Petitioner was indicted by the grand jury of Escambia county on a charge of carnal knowledge of a girl over 12 and under 16 years of age. Upon the trial the jury rendered, and the court received, the following verdict: "We the jury find the defendant guilty, as charged in the indictment," after which the jury was discharged. On a later day of the court and over the protest of defendant, petitioner was adjudged guilty, and the trial judge, of his own motion, sentenced petitioner to an indeterminate sentence of from 2 years to 2 years and 1 hour in the penitentiary.
The statute, Code 1923, § 5411, provides that the punishment for a violation of that statute is: " At the discretion of the jury. " A verdict of a jury in such a case which fails to fix the punishment is incomplete, and should not be received by the court. Dentler v. State, 112 Ala. 70, 20 So. 592; Ex parte Goucher, 103 Ala. 305, 15 So. 601.
We know of no law which authorizes the court to fix the punishment in cases of this character. The discretion is by express statute placed upon the jury, and an attempted exercise of such power by the judge, independent of the verdict of the jury, is error. McKinney v. State, 17 Ala. App. 474, 86 So. 121; Hawes v. State, 19 Ala. App. 280, 97 So. 114; Bates v. State, 170 Ala. 26, 54 So. 432.
Illegality, as distinguished from mere irregularity, rendering the proceeding voidable only, not absolutely void, is a usurpation or excess of jurisdiction apparent on the face of the proceeding, and will entitle a party restrained of his liberty to a writ of habeas corpus and to a discharge from imprisonment. Ex parte McKivett, 55 Ala. 236; Ex parte Simmons, 62 Ala. 416; Ex parte Brown, 102 Ala. 179, 15 So. 602.
While the judge acted without authority, the jurisdiction of the court was not exceeded, and the act of the judge is reviewable on appeal,...
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Prothro v. State
...23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala. 106, 121 So. In amending the statutory law by Acts 1969, No. 1061, p. 1981, § 1, the previous strin......
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Headrick v. State, 7 Div. 75
... ... See Houston v. State, Ala.App., (37 Ala.App. 359), 68 So.2d 735; Tanner v. State, 23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala.App. 106, 121 So. 692.' ... We quote from Houston v. State, 37 Ala.App. 359, 68 So.2d 735, as follows: ... 'The judgment entry shows that upon the appellant's arraignment he entered a plea of guilty, was adjudged guilty ... ...
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Norris v. State, 6 Div. 213
...benefit of the court and is not mandatory. Martin v. State, 62 Ala. 240." Id. at 698, 122 So.2d at 536. See also Smith v. State, 23 Ala.App. 72, 72, 121 So. 692, 692 (1929) (wherein the court, in affirming the trial court's denial of the petitioner's habeas corpus, held that "[w]hile the ju......
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Ala. Dep't of Human Res. ex rel. A.A.D. v. J.R.H. (Ex parte J.R.H.)
...(" ‘While the judge acted without authority, the jurisdiction of the court was not exceeded ....’ " (quoting Smith v. State, 23 Ala. App. 72, 72, 121 So. 692, 692 (1929) )). The father has an adequate remedy on appeal with regard to the argument he asserts in this petition for a writ of man......